Tag Archives: Department of Justice

We Still Don’t Know What Happened in October 2016

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Two of the last six presidential elections gave us Republican presidents who lost the popular vote. The institution most responsible for those results was our ridiculous, minority-rule Electoral College. But other institutions played important roles. In 2000, it was the Republican majority on the Supreme Court. In 2016, it was the Federal Bureau of Investigation, assisted by the press.

Will Bunch of The Philadelphia Inquirer shows that we still don’t know how America got screwed in October 2020:

It was arguably the most consequential “October Surprise” in the history of American presidential elections. In the waning days of the 2016 race, with polls showing Hillary Clinton clinging to a lead over D____ T____, two last-minute stories broke that rekindled on-the-fence voters’ ethical doubts about Democrat Clinton and quashed a budding scandal around her GOP rival.

Except the “October Surprise” was no surprise to one key player: Rudolph Giuliani, the ex-New York City mayor and T____ insider who later became the 45th president’s attorney. Late that month, Giuliani told Fox News that the trailing Republican nominee had “a surprise or two that you’re going to hear about in the next few days. I mean, I’m talking about some pretty big surprises.”

Just two days later, then-FBI director James Comey revealed the bureau had reopened its probe into Clinton’s emails, based on the possible discovery of new communications on a laptop belonging to disgraced New York politico Anthony Weiner. The news jolted the campaign with a particularly strong boost from the New York Times, which devoted two-thirds of its front page to the story — and the notion it was a major blow to Clinton’s prospects.

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It was later reported that Comey was motivated to make the unusual announcement about the laptop because he feared leaks from the FBI’s New York field office, which, according to Reuters, had “a faction of investigators based in the office known to be hostile to Hillary Clinton.” Indeed, Giuliani bragged immediately after that he had sources in the FBI, including current agents.

The supposed bombshell — it turned out there was nothing incriminating or particularly new on the laptop — wasn’t the only FBI-related story that boosted T____ in the homestretch of the 2016 campaign. On Oct. 31, citing unnamed “intelligence sources,” the Times reported, “Investigating D____ T____, F.B.I. Sees No Clear Link to Russia.” That article defused a budding scandal about the GOP White House hopeful — at least until after T____’s shock election on Nov. 8, 2016. In the coming days and weeks, the basis of that Times article would melt, but by then the most unlikely POTUS in U.S. history was ensconced in the Oval Office.

There are many reasons for T____s victory, but experts have argued the FBI disclosures were decisive. In 2017, polling guru Nate Silver argued that the Comey probe disclosure cost Clinton as many as 3-4 percentage points and at least 1 percentage point, which would have flipped Pennsylvania, Michigan, and Wisconsin and handed her the Electoral College.

This week’s stunning corruption charges against a top FBI spymaster [whose assignment to the New York office was announced in October 2016] — an agent who by 2018 was known to be working for a Vladimir Putin-tied Russian oligarch — should cause America to rethink everything we think we know about the T____-Russia scandal and how it really happened that T____ won that election.

The government allegations against the former G-man Charles McGonigal (also accused of taking a large foreign payment while still on the FBI payroll) and the outsized American influence of the sanctioned-and-later-indicted Russian billionaire Oleg Deripaska — also tied to U.S. politicians from T____ campaign manager Paul Manafort to Senate GOP leader Mitch McConnell — should make us also look again at what was really up with the FBI in 2016.

How coordinated was the effort in that New York field office to pump up the ultimate nothingburger about Clinton’s emails while pooh-poohing the very real evidence of Russian interference on T____’s behalf, and who were the agents behind it? What was the role, if any, of McGonigal and his international web of intrigue? Was the now-tainted McGonigal a source who told the New York Times that fateful October that Russia was not trying to help Trump win the election — before the U.S. intelligence community determined the exact opposite? If not McGonigal, just who was intentionally misleading America’s most influential news org, and why?

…To be sure, the 2016 FBI leaks weren’t the first time a major news organization has been burned by anonymous law enforcement sources, and regrettably, it probably won’t be the last. Media critics have been talking for years about the Times’ flawed coverage, and how its near certainty that Clinton would win and a desire to show its aggressiveness toward a future president seemed to have skewed its coverage.

It’s not only that America’s so-called paper of record has never apologized for its over-the-top coverage of the Clinton emails or the deeply flawed story about the FBI Trump-Russia probe. It’s that the Times has shown a stunning lack of curiosity about finding out what went wrong….

Last week’s indictment of McGonigal is a classic case of raising more questions than were answered. The evidence presented by prosecutors suggests the FBI counterintelligence expert wasn’t introduced to Deripaska until his waning days with the bureau in 2018, aided by a pair of Russian diplomats. In 2019, after he’d retired, the indictment says McGonigal went to work for the oligarch to help him evade U.S. sanctions and to investigate a rival. But the Times also reported that U.S. counterintelligence — in which McGonigal had been a key player — had tried unsuccessfully to recruit Deripaska as an asset in the years around the 2016 election.

Like the Woody Allen character Zelig, Deripaska — a 55-year-old aluminum magnate who at one time was the richest man in Putin’s Russia — is turning up in the background everywhere in the ongoing corruption of American democracy. The oligarch’s history of multimillion-dollar business dealings with Paul Manafort — T____’s campaign manager in the summer of 2016 — is central to the theory of Russian interference, after it was confirmed that Manafort shared key campaign data with a suspected Russian intelligence agent also connected to Deripaska.

In 2019, Deripaska did manage to get those U.S. sanctions lifted, in a controversial deal backed not only by Team T____ but critically by then-Senate Majority Leader Mitch McConnell. That same year, a Deripaska-linked aluminum company announced it would build a large plant in Kentucky, where McConnell was running for reelection. (It eventually wasn’t built.) This is the same McConnell who, during that critical fall period in 2016, refused to sign a bipartisan statement warning about Russian election interference.

Another coincidence in a scandal that is drowning in so-called coincidences.

It’s becoming clear that the tamping down of the most explosive parts of the Trump-Russia story is the greatest case of gaslighting since the movie [of that name] hit screens in 1944. It’s not just the FBI leaks in New York. We also learned last week — yes, thanks to that same New York Times — about the extraordinary and ethically dubious lengths that T____’s second attorney general, William Barr, and Barr’s handpicked special prosecutor, John Durham, went to to try to prove the FBI was out to sink T____. That’s the exact opposite of what really happened. Indeed, the Times noted the only major criminality turned up in the Durham probe was a potentially explosive new charge of financial impropriety — by D____ T____.

Seven years later, the lack of accountability and justice for the gaslighting of American democracy is appalling. Barr did a remarkable job in blunting the investigation by special counsel Robert Mueller, including squashing his findings about obstruction of justice by the T____ administration. A much-hyped probe by Justice Department inspector general Michael Horowitz into the FBI’s New York office took four long years and failed to find the leakers. And new revelations — including that tip about T____ financial crimes that Italian intelligence passed on to Barr and Durham — continue to surface.

Why does it matter? T____ is no longer president, after all, and America has a lot of other problems, with police brutality and mass shootings currently on the front burner. Yet when it comes to this all-encompassing T____-Russia scandal, the past isn’t even past. The seemingly untouchable 45th president was in New Hampshire and South Carolina this weekend, campaigning to become the 47th. The man that critics call “Moscow Mitch” McConnell could return as majority leader in that same election. And Putin’s obsession with Ukraine — always a focus of his U.S. interference and T____ dealings — has become a war with dire global implications.

More importantly, this never-ending scandal has demolished our trust in so many institutions — an FBI that seems to have corrupted an election, a Justice Department that covered up those deeds, and, yes, a New York Times that enabled several lies instead of exposing them.

I Intend To Never Mention This Again

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Whitewater. Her emails. Our latest fake scandal can’t possibly generate as much bullshit as those two. Nevertheless, it’s worth being reminded of a few simple facts. Jonathan Chait of New York Magazine does the reminding with “Biden’s Document Blunder Is Nothing Like Trump’s Crime”:

The sweet spot for D____ T____’s allies has always been when they can justify his abuses and crimes through misdirected comparisons rather than direct defense. Did T____ extort Ukraine into smearing his opponent? Well, Ted Kennedy once did something kind of like this. Did T____ try to stay in office after losing the election? Maybe so, but let us tell you about the time a Democrat registered an objection to the Electoral College count in Congress.

The key aspect of these arguments is exaggeration, not fabrication. They seize on real events, often genuinely bad things done by other politicians, then use them as pretext to dismiss actions by Trump of a vastly greater order of magnitude.

As many people have very neutrally pointed out, the news that President Biden held on to classified documents is pure manna for T____’s defenders. It gives them a set of facts to work with that, if examined without any of the important context, can be spun to the willfully credulous as evidence that these men have committed similar crimes.

“There’s no good case for putting a President in prison — much less making two Presidents into cellmates — for improperly retaining materials from recent public office,” intones The Wall Street Journal. “When Mr. T____ was out on a limb by himself, this point was less obvious to some of our media competitors. Now that Mr. Biden faces a similar inquiry, perhaps they see how ridiculous it is.”

But T____ is not potentially facing charges because he improperly took classified documents. It’s because when the government found out about the documents, he refused to give them back and — allegedly — took steps to hide them from the FBI. This is not a small twist on the same crime. It is the crime.

You might say, in T____s defense, that he had no underlying motive to hold on to the documents — that is, they didn’t contain any national-security secrets he planned to sell or incriminating information he wished to hoard. That is probably true. The motive instead seems to be that T____ does not believe the law applies to him.

This is how he has operated for his entire career. He cheats, lies, and steals in the expectation that he can brazen out any consequences. He can simply refuse to let Black people rent an apartment or pay contractors what he promised them or lie to his lenders about his worth, and whatever cost he faces will be worth it. The reason his document theft rose to the level of a federal crime was that he applied this method to behavior that is covered by the federal criminal code and handled by prosecutors he can’t necessarily bully or bribe into submission.

When T____’s allies moan about his supposedly unfair treatment, the distinction is hiding in plain sight of their complaints. “Where’s the raid? Where’s the pictures of the classified documents? Where’s the special counsel?” demands Jim Jordan.

“Why hasn’t the FBI raided Joe Biden’s home?” asks Dan Crenshaw.

The obvious answer is that Biden didn’t refuse to give back the documents. Indeed, his lawyers volunteered that they had the documents and turned them over immediately. There was nothing to raid.

If T____’s lawyers had informed the National Archives that he’d mistakenly taken classified documents, or even if they had responded to requests from the archives by turning them over, the FBI never would have been involved. The documents themselves would never have become a criminal matter if T____ had complied with the law. It became one because he flagrantly refused to follow the law, which happened because T____ is a criminal.

The whole thrust of T____ist propaganda has been to act as though normal politicians making normal blunders are criminals in order to justify handing the presidency to a lifelong crook. T____ is not a smart man but shrewd enough to comprehend that his party is fully invested in a narrative of Democratic evil that compels them to deem anything he’s done, however wrong or illegal, as no different than the actions of any other powerful man. If T____ shot somebody on Fifth Avenue, Republicans would start talking about [anything else].

Meanwhile, the deputy opinion editor of the Washington Post argued today that — although Biden’s situation is clearly different — the Department of Justice shouldn’t prosecute the former president/unindicted co-conspirator/lifelong con man and scofflaw, since the Department’s “credibility rests on being perceived to play fair” and millions of Republicans won’t think it’s fair that only their guy is prosecuted. The Post’s deputy opinion editor isn’t equally concerned about the credibility of a Department of Justice that doesn’t prosecute somebody for serious crimes because his supporters will be angry.

The Government Strikes Back in Florida

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If our depraved former president (FPOTUS) ceased to breathe, the world would be a much better place.

However, in light of the sorry fact that FPOTUS is still breathing, the government did two things today. First, they filed a motion to stay (put on hold) the recent ruling by one of FPOTUS’s “judges” in Florida that interfered with the criminal investigation of FPOTUS’s theft of government documents. But the government limited this request to the 100 or so classified documents found by the FBI when they searched FPOTUS’s lair. The government pointed out that the former president has no right to control access to classified documents under any possible interpretation of the law. They also asked that the “special master” (or outside party the “judge  wants) not be allowed to review the classified documents in order to determine if they somehow belong to FPOTUS:

Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit (i.e. the higher level in the federal judiciary responsible for Florida, Georgia and Alabama).

The other thing the government did was to file an appeal with the Eleventh Circuit regarding the order for a special master to be appointed at all. The beauty of the appeal is that it allows other judges, some of whom are more competent and less corrupt, to get involved in FPOTUS’s stupid lawsuit; and the government is in no rush to have the appeal ruled on, assuming that a special master can’t be appointed until the Eleventh Circuit rules, which could be months from now.

It helps to have a Department of Justice that is, unlike the one FPOTUS was in charge of,  competent and not corrupt. If you’d like to see some of your tax dollars at work:

The United States’ Motion for a Partial Stay Pending Appeal

Declaration of Alan E. Kohler, Jr., Assistant Director, Counterintelligence Division, Federal Bureau of Investigation

Merrick Garland Has To Get It Right This Time

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Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

Charge Him Now: Obstruction of Justice

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Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?